Ross v. Mail Order Merchandising, Inc.

128 A.D.2d 514, 512 N.Y.S.2d 446, 1987 N.Y. App. Div. LEXIS 44206

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1987
• Status: Published

Opinion

In an action to recover unpaid rent allegedly due and owing under a written lease, the defendant appeals from a judgment of the Supreme Court, Nassau County (Christ, J.), dated December 11, 1985, which, after a nonjury trial, is in favor of the plaintiff in the principal amount of $200, upon awarding the plaintiff $6,200 less a credit of $6,000 which was previously paid.

Ordered that the judgment is affirmed, with costs.

Under the facts of this case, in which there was a liquidated, undisputed claim, no accord and satisfaction arose by reason of the defendant’s partial payment tendered to and accepted by the plaintiff (see, Gersh v Johansen, 76 AD2d 916, Iv denied 51 NY2d 709; Matter of King Metal Prods, v Workmen’s Compensation Bd., 20 AD2d 565).

The defendant’s counterclaim to recover damages for breach of an oral agreement, in which the plaintiff Carl M. Ross allegedly agreed to expand the subject premises, was properly dismissed for failure to establish the material terms of that agreement. Notably lacking in the purported agreement was the rent under the proposed new lease during its first five-year term and the five-year renewal period (see, Martin Delicatessen v Schumacher, 52 NY2d 105; Mocea Lounge v Misak, 94 AD2d 761).

The trial court did not, under the circumstances, act improperly when it denied the defendant’s application for leave to amend its answer to assert a second counterclaim at the trial (see, Bertan v Richmond Mem. Hosp. & Health Center, 106 AD2d 362, 363-364). Finally, the awarding of costs to the plaintiff was proper (see, CPLR 8201 [2]). Mollen, P. J., Lawrence, Kunzeman and Sullivan, JJ., concur.